Daniel's Law: Safe Haven for Abandoned Child and His Parents

Mon, 15 Mar 2010 20:14:48 GMT

Section 63-7-40 of the South Carolina Code of Laws, as amend, provides distressed young women and men an opportunity to surrender a new born child without being prosecuted for abandoning the child.

The above section provides that a person who leaves an infant at a safe haven or directs another person to do so must not be prosecuted for any criminal offense on account of such action if:

(1) the person is a parent of the infant or is acting at the direction of a parent;

(2) the person leaves the infant in the physical custody of a staff member or an employee of the safe haven; and

(3) the infant is not more than thirty days old or the infant is reasonably determined by the hospital or hospital outpatient facility to be not more than thirty days old.

Safe haven as defined by statute means a hospital or hospital outpatient facility, a law enforcement agency, a fire station, an emergency medical services station, or any staffed house of worship during hours when the facility is staffed.

Please note that you must leave the child with a staff member or an employee of the safe haven and no one else. Please also note that this law protects you from prosecution for leaving the child as outlined above; it does not protect your from any other abuse or neglect that may have occurred to the child prior to you surrendering the child.

Surrendering your child is conclusive evidence that the legal requirements for terminating your parental rights have been satisfied, and you essentially lose all your parental rights. This only applies to the person who left the child at the safe haven or the person who instructed someone else to do so for her.

South Carolina Department of Social Services provides a brochure concerning Daniel's Law at https://dss.sc.gov/content/library/forms/files/2493.pdf. This brochure provides another explanation of Daniel's Law.

Remember you are protected if you follow the law when surrendering your child; if you do not follow the law then you forgo your statutory protection. Please call the South Carolina Department of Social Services at 1-888-722-2580 if you have any questions.

WIFE HUSBAND JOINT OWNERSHIP HOME SUMMIT UNION COUNTY NEW JERSEY FAMILY LAW MEDIATION

ccaesq@att.net (Charles C. Abut) — Mon, 15 Mar 2010 20:05:35 GMT

When a New Jersey wife and husband own their home as tenants by the entireties, each of them has an automatic right of survivorship. Here, the wife filed a bankruptcy petition and then died while it was pending. When the trustee in bankruptcy then claimed title to the property, the husband defeated this attempt and successfully established his sole ownership of the whole property. In Re Etoll, U.S. Bankruptcy Court, District of New Jersey, March 10, 2010

Topic 5: Health and Life Insurance

Mon, 15 Mar 2010 18:24:50 GMT

Hi there

In today's political climate the next item, health insurance, is somewhat challenging to consider.

There should be provisions in all agreements, for both health insurance coverage and for how you will handle the uninsured medical expenses for both yourselves and your children.

Generally this is first an economic and a health consideration; Who has the best insurance at the best price? If there are children then the cost of insurance is covered in the child support guidelines. The guidelines provide that the custodial parent pays for the first $250 of uninsured expenses for the children, then the parents share the remainder annually. Generally it is best to spell out what is intended to be covered; medical expenses, dental expenses and counseling expenses, then list what future expenses need to be discussed before they are incurred; there can be a different split of the cost of large ticket items, such as orthodontia as well.

Massachusetts has a provision in its laws that requires health insurance companies with some exceptions to provide post divorce insurance for the spouse of the insured. This is great unless the insured spouse is employed by a company that is a self insurer (Microsoft) or works for the government, in which case the spouse will have to obtain their own insurance. The issue of who pays for this and how the payment is to be characterized, as alimony or not is the subject generally of negotiation, often intense.

Life insurance should be part of any agreement where one there are children or where one side has a support obligation to the other side. The purpose of life insurance in a divorcing family is exactly the same as it would be in an intact one. It is to replace the stream of income that would be lost should one party die, or to fund the obligations to pay in the future that one party has for the benefit of the other or for the benefit of the children. I am not a proponent of whole life insurance and particularly not in a divorce situation where the obligation is limited. If you shop around there is some very reasonable term life insurance available.

You will need to consider: duration, amount , beneficiaries, proof of insurance, how does one party determine that the insurance is in effect, as well as a logical relationship of the insurance to your obligations.

Best,

Nancy

Avoiding Financial Disaster in Divorce

Mon, 15 Mar 2010 16:38:24 GMT

Many people face financial uncertainty when they divorce in Texas. Often, this stems from taking the same amount of income that was previously being used to fund one household and splitting it up to cover two househoulds, including two house payments, two utility payments, two sets of furniture, and maybe even two attorneys. This problem is especially exacerbated when only one spouse works, leaving the other spouse somewhat dependent on the working spouse for money.

The time while a divorce is pending is when you should really tighten the belt and spend only within your means. Now is not the time to go to Neiman's or have fresh flowers weekly. Prepare youreself now for the eventuality that your standard of living may change dramatically after the divorce is final.

One common mistake people make is considering the divorce settlement to be income used to pay monthly expenses, instead of reserving the assets, retirement and other items received in the settlement for self-improvement, reserves, or rainy days. Doing this will only make it worse when the assets or other funds run out.

When you are deciding on what assets you and your spouse will take, you should be aware that not all assets are equal. One of you may end up with a huge tax bill when you access the assets: for instance, you could end up paying capital-gain taxes upon the sale of your home or your investment assets. In addition, if you dip into your retirement assets, you may end up paying income tax and a penalty. Consider the present cash value of each asset in dividing things up -- if it isn't cash then how hard would it be to convert it to cash.

Other assets may end up being a money pit. Your primary residence, vacation home, or rental properties could cost you a significant amount of money to maintain. Frequently, the primary benefit of a rental property is not necessarily cash flow, but the tax losses that are generated. If you are in a low tax bracket, then these losses may not benefit you to the extent that another investment would. Your expenses may actually increase. For example, if your spouse used to make all repairs, mow the lawn, etc., but now you have to hire someone to do those things, then your expenses will increase. Would you be better off liquidating these properties and investing the proceeds in something that would increase your cash flow instead of creating a financial drain?

For more info on this topic, see Divorce Magazine's article.

Here's more info on Property and Debt Division in Divorce.

Questions You Should Ask Yourself Before Filing for Divorce

Mon, 15 Mar 2010 13:22:41 GMT

A divorce can be one of the most stressful and emotionally involved experiences of your life. The more prepared you are when beginning the divorce process, the smoother the process will be for you. Therefore, it is important to ask yourself the following key questions to make sure you understand the legal process and are prepared for the emotional involvement a divorce requires:

Would it would be beneficial to speak with a marriage counselor, either individually or as a couple? Even if you think there is no hope for saving the marriage, talking to a professional might help you recognize where things went wrong, and how you can avoid similar behavior in the future.
Is it a financially good idea or bad idea to get a divorce in this economy? Although there are signs that the economy is strengthening, a lot of individuals still have not fully recovered from the effects of the economic downturn. As a result, getting a divorce now may cost you more than it would if you “stick it out” and wait until the economy is moving in strong positive direction.
Can someone refer you to a qualified divorce attorney? A divorce is a complicated procedure and you will need someone to not only advise you but listen to your needs and concerns as well. You’ll be spending a good amount of time, and money, with your divorce attorney, so it is critical that you shop around until you find an attorney that fits your personality and needs. Referrals from friends and family that have gone through a divorce can be a great resource to consider.
Do you have all of your financial documents in order? It is absolutely critical to have all your financial documents gathered and in a safe place before filing for divorce. During a divorce, your bank account statements, credit card statements, retirement and brokerage account statements will be looked at with great scrutiny. Doing the legwork before filing for divorce and gathering all these documents will help not only keep costs down (from having your attorney search for these records), but also help keep the emotional toil down as well.
What steps can you take to safeguard your assets during separation? Consider whether you should take possession or certain assets, especially those you wish to continue using such as your car or other personal belongings. Also consider whether you should protect your credit score by closing out joint credit cards and bank accounts.
What are your goals of the divorce? For some, the goal is short-sighted: they just want to end their marriage. For others, the goal is to be put in a situation to where they can move on to greener pastures and continue to grow in their personal lives. Whatever the reason, it is important to ask yourself what your goal is and communicate this with your divorce attorney.

You can read more about each of these items here.

Source: "Questions to Ask Yourself Before Filing for Divorce" by Nathan Anderson, published at the Dallas Divorce Law Blog.

What Type of Entity is Best for you in New Jersey

Mon, 15 Mar 2010 13:08:22 GMT

There are a number of different factors one must consider in forming an entity in New Jersey, chief among them: (a) how the entity will be taxed, (b) management, and (c) to what extent does the entity offer protection from personal liability. What follows is a brief description of entity formation in New Jersey, focusing on the above considerations.

“C” and “S” Corporations
Perhaps the most well known form of business entity is the “C” corporation. Companies such as Pepsi and Ford are “C” corporations. A “C” corporation is an entity that is separate and apart from its owners. What this means is that the earnings that are distributed to the owners are taxed both at the corporate level and at the personal level. The “S” corporation is a corporation with more favorable tax treatment. The profits and losses of a “S” corporation pass through to the shareholders of the corporation, and are therefore taxed only once. An “S” Corporation is not without its drawbacks. The current tax laws limit the number of investors, classes of stock, and have strict residency requirements. Shareholder liability in a corporation is limited to the shareholder’s investment in the corporation.

New Jersey’s corporate management structure is similar to that found in most states. Generally, New Jersey corporations are managed by a board of directors, who are elected by the shareholders. The directors stand in a fiduciary relationship to the corporation and must perform their duties in good faith. The board of directors of the corporation elect officers to handle the day-to-day affairs of the corporation.

Partnerships
General partnerships and limited partnerships enjoy “flow-through” tax treatment for tax purposes; the entity is not taxed and the partners report profits and losses directly on their personal income tax returns. Unless an agreement between the partners provides otherwise, each partner is entitled to share equally in the management of the partnership and has the authority to bind the partnership. The drawback of the general partnership is lack of limited liability protection. In contrast to a general partnership, limited partners in a limited partnership do not participate in the management of the partnership. A limited partnership must have at least one general partner and at least one limited partner. The general partner assumes personal liability for the debts and obligations of the partnership. The limited partners do not have any personal liability beyond the capital contributions they contribute to the partnership.

Limited Liability Companies
Like general partnerships and limited partnerships, limited liability companies’ (“LLCs”) profits and losses “pass through” the entity and are reflected and taxed on the individual tax returns of the members. LLCs can be managed by the members or one or more elected managers. The default rule in New Jersey is that the members manage the LLC. In this scenario, each member has the authority to bind the LLC. If the members opt to have the LLC managed by a board of managers, the members may appoint one or more managers to operate and control the business. In this instance, each manager is vested with the authority to bind the LLC.

Unlike a limited partnership, there is no requirement that at least one member of the LLC be responsible for the liabilities of the company. Furthermore, members are not liable for the debts of the LLC solely because they are members. Because of the ease of formation and its favorable liability treatment, the LLC has become increasingly popular in New Jersey.

Tzolis No Solace for Proponent of LLC Member Expulsion

Mon, 15 Mar 2010 11:00:00 GMT

Two cases do not a trend make, but I can't shake the feeling that the Brooklyn-based Second Department appeals court has clamped down on the era of freewheeling judicial remedies in business breakup cases involving limited liability companies.

As I reported here, last January the Second Department issued a major ruling in the 1545 Ocean Avenue case articulating a new, tougher standard for LLC dissolution, in line with the Delaware approach, in which freedom of contract and fidelity to the operating agreement are paramount. Earlier this month, the Second Department issued another significant ruling in Chiu v. Chiu, 2010 NY Slip Op 01768 (2d Dept Mar. 2, 2010), holding that courts have no statutory authority to order expulsion of an LLC member for alleged misconduct, absent language in the operating agreement expressly providing for an expulsion remedy. In so ruling, the court turned its back on the appellant's argument that judicial expulsion should be recognized as a common law remedy under the reasoning of the Court of Appeals' 2008 decision in Tzolis v. Wolff, 10 NY3d 100, where it divined a common law basis for LLC derivative actions.

Chiu arises from a bitter family dispute between older brother Winston Chiu (WC) and younger brother Man Choi Chiu (MCC) featuring multiple lawsuits over a real estate holding limited liability company called 42-52 Northern Blvd., LLC formed in 1999. The property was purchased for approximately $5.5 million. The LLC had no written operating agreement. The LLC's 1999 and 2000 tax returns identified WC and MCC as holding 25% and 75% interests, respectively. Under a 1999 agreement, WC had certain rights to purchase the 75% interest held by his brother.

After disputes erupted, in 2001 WC unilaterally prepared a deed transferring the LLC's real property to his personal trust. In 2002, MCC sued WC and the trust to set aside the conveyance as fraudulent. After a trial the court entered judgment in MCC's favor voiding the property transfer and also declaring that WC was "never a member" of the LLC and that MCC was its "sole member". On WC's subsequent appeal, the Second Department issued a ruling in 2007 (reported at 38 AD3d 619) upholding the avoidance of the property transfer but reversing the judgment's negation of WC's membership interest in the LLC based largely on the tax returns.

MCC then started another lawsuit against WC asserting two claims: first, seeking a declaration of the brothers' respective ownership rights in the LLC and an accounting by WC in the event WC is determined to have an interest, and second, seeking a judgment removing WC as a member of the LLC based upon his alleged misconduct and breach of fiduciary duty surrounding the previously adjudicated fraudulent conveyance.

By decision and order dated March 11, 2008, Queens County Supreme Court Justice James P. Dollard partially dismissed MCC's first claim, insofar as it sought to characterize WC's interest in the LLC as "nominal," on res judicata and collateral estoppel grounds stemming from the Second Department's 2007 ruling. Of more interest, Justice Dollard granted WC's request to dismiss the second claim seeking his expulsion from the LLC, holding that the LLC Law does not authorize judicial removal of a member absent provision for removal in the operating agreement.

In between the submission of WC's dismissal motion and Justice Dollard's decision, the New York Court of Appeals (the state's highest court) decided the Tzolis case by 4-3 vote in favor of an LLC member's common-law right to bring derivative claims notwithstanding the legislature's deliberate omission of a statutory right of derivative action. In June 2008, MCC moved for reconsideration of the order dismissing his claim to expel WC, arguing that Tzolis represented a change in the law authorizing the court to devise an expulsion remedy for member misconduct even absent express statutory authority.

By order dated July 7, 2008, Justice Dollard denied MCC's motion, writing that the Tzolis majority relied on

the long common law history of derivative actions . . . but in the case at bar, plaintiff MCC did not show that there is a common law basis for the expulsion of a member of a limited liability company or even for the expulsion of a partner [in a partnership].

MCC thereafter appealed from the dismissal of his claim seeking to expel WC. MCC's brief on appeal (read here) raised two arguments. First, he rested judicial authority to grant the expulsion remedy on §701 of the LLC Law which expressly references the "expulsion" of a member (amongst other events including bankruptcy, death, dissolution, incapacity and withdrawal) as triggering the non-judicial dissolution of the LLC unless the remaining members authorize its continuation. (The statute was "flipped" by legislative amendment effective after the formation of the subject LLC, to provide for continuation of the LLC following such events unless the remaining members vote to dissolve.)

MCC devoted the greater part of his brief to his second argument based on Tzolis. Essentially, MCC argued that under Tzolis the courts have broad common-law authority to devise any and all equitable remedies for the misconduct of faithless fiduciaries, including expulsion of a member, unless affirmatively barred by the legislature. In other words, because Tzolis was based, in part, on the "absence of any expressed intent on the part of the Legislature to bar [derivative] actions in the context of limited liability companies" (Br. 29) and, in other part, on the court's recognition of "the importance of courts providing a judicial remedy for a breach of fiduciary duty" (Br. 26),

under Tzolis, a limited liability company must, and does, have the right to expel a dishonest and disloyal member, even in the absence of an operating agreement provision expressly providing for expulsion, lest the courts sanction or condone a "license to steal". [Br. 29]

WC's brief opposing the appeal (read here) argued that §701's single reference to expulsion does not authorize judicial expulsion and "simply means that in the event an operating agreement provides for such expulsion, certain events might thereafter occur if a member is actually expelled pursuant to agreement" (Br. 34). In response to the Tzolis argument, WC argued:

The Court in Tzolis merely stated that given the well established history of derivative suits, that particular remedy should be available to LLC members. It never stated that a fortiori other remedies that are not provided for in the LLC Act should be available. [Br. 36]

In his reply brief (read here), MCC pressed his argument for expansive judicial common-law authority to devise equitable remedies to right alleged wrongs, urging the court to apply the reasoning of Tzolis in support of an expulsion remedy for LLC member misconduct. His reply brief also cited Gottlieb v. Northriver Trading Co., LLC, 58 AD3d 550 (1st Dept 2009), which I wrote about here, where a Manhattan appellate panel relied on Tzolis in recognizing an LLC member's common-law right to an equitable accounting.

The Second Department's decision earlier this month, rejecting MCC's appeal, unfortunately does not directly address the Tzolis argument. According to attorney Jeffrey Eilender of Schlam Stone & Dolan LLP, who represented WC and attended the oral argument of the appeal, the panel gave the Tzolis argument a "very frosty" reception. In any event, here's what the court wrote:

The Supreme Court properly granted that branch of the defendant's motion which was to dismiss the second cause of action seeking his expulsion as a member of the plaintiff 45-52 Northern Blvd, LLC (hereinafter the LLC). It is undisputed that the default provisions of the Limited Liability Company Law apply, as neither the articles of organization nor the alleged operating agreement of the LLC contain a provision concerning expulsion of members (see Manitaras v Beusman, 56 AD3d 735; Ross v Nelson, 54 AD3d 258). Although Limited Liability Company Law § 701 mentions expulsion of members, there is no statutory provision authorizing the courts to impose such a remedy. Rather, the reference to expulsion of members contemplates the inclusion of such a provision in an operating agreement. As the LLC did not have an operating agreement setting forth a mechanism for the expulsion of members, the plaintiff failed to state a cause of action for this relief.

In a post I wrote over two years ago, spurred by a Utah court decision, I contrasted that state's LLC Act, which contains express authorization for judicial expulsion of an LLC member whether or not also authorized in the operating agreement, with New York's LLC Law which has no similar language. The Chiu decision removes any remaining doubt that the sole path to member expulsion for a New York LLC runs through the operating agreement. Does Chiu, on the heels of 1545 Ocean Avenue, also signal a pullback from liberal judicial intervention in the internal affairs of LLC members, effectively forcing the members to live with their agreements for better or worse? My safe answer is, it's too early to say.

Finally, the question whether it makes good sense to include a member expulsion clause in the operating agreement is an altogether different issue which, coincidentally, I raised in a post last month about a case in which the court upheld an LLC member's expulsion for cause as specified in the operating agreement.

How Can Your Fear Serve You?

ht@moddivorce.com (Helene Taylor) — Sat, 13 Mar 2010 20:40:29 GMT

If you begin to face your fears, something bittersweet is going to happen to you: You’ll grow up. You’ll lose your dependency on the grown-ups of the world because you’ll realize that there is no time, no age, at which fear suddenly fades and you become one of these impervious beings…Fear is the raw material [...]

If you begin to face your fears, something bittersweet is going to happen to you: You’ll grow up. You’ll lose your dependency on the grown-ups of the world because you’ll realize that there is no time, no age, at which fear suddenly fades and you become one of these impervious beings…Fear is the raw material from which courage is manufactured. Without it, we wouldn’t even know what it means to be brave.—Martha Beck, Finding Your Own North Star

Bankruptcy Filings Up Substantially in 2009

Sat, 13 Mar 2010 17:51:16 GMT

As a practicing family and bankruptcy attorney, I consistently run into cases where people are dealing with both a divorce (or other family law related matter), as well as a bankruptcy. This is because, many times, one is the cause of the other (this works both ways), and the cases often go hand in hand. That is probably no surprise considering the current economic climate, and if this applies to you, believe me, you are far from alone. Check out the numbers:

Bankruptcy filings in the federal courts rose 31.9 percent in calendar year 2009, according to data released by the Administrative Office of the U.S. Courts. The number of bankruptcies filed in the twelve-month period ending December 31, 2009, totaled 1,473,675, up from 1,117,641 bankruptcies filed in 2008.

Filings have grown steadily since 2006, when bankruptcy filings totaled 617,660, in the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect. An historic high in the number of bankruptcy filings was seen in 2005, when over 2 million bankruptcies were filed just before BAPCPA took effect.

Filings by Chapter
In 2009, filings rose under Chapters 7, 11, 12 and 13 of the U.S. bankruptcy code.

· Chapter 7 filings totaled 1,050,832 up 41 percent from the 744,364, Chapter 7 filings reported in 2008.

· Chapter 11 filings rose 50 percent to 15,189, up from the 10,147 filings in 2008.

· Chapter 13 filings were 406,962, up 12 percent from the 362,705 filings in 2008.

· Chapter 12 filings totaled 544, up 58 percent in 2009, compared to 345 Chapter 12 bankruptcy filings in CY 2008.

Burns Institute State Map of Disproportionate Minority Contact (DMC)

Sat, 13 Mar 2010 16:54:42 GMT

The Haywood Burns institute, a San Francisco-based national nonprofit dedicated to improving the lives of youth of color has created a State Map of Disproportionate Minority Contact (DMC) to quantify Disproportionate Minority Contact on a state-by-state basis. DMC includes measuring the differential in arrest or referral rates among youth based on race, an historic disparity [...] Related posts:

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Unbridled Discretion of the Texas State Board of Education

Fri, 12 Mar 2010 22:10:52 GMT

The Texas State Board of Education has drawn significant media attention lately for what has been characterized as putting a “conservative stamp on history and economics textbooks” used not only in Texas but, due to it’s influence on the textbook market, across the country. Whatever ones political persuasions may be, the resulting furor raises valid [...] Related posts:

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EXPLICIT PHOTOS INVASION OF PRIVACY CLOSTER BERGEN COUNTY NEW JERSEY MEDIATION LAWYER

ccaesq@att.net (Charles C. Abut) — Fri, 12 Mar 2010 18:09:16 GMT

This unmarried New Jersey couple dated for 9 months. He sent out Christmas cards containing explicit photos of her to her friends, family, neighbors and business clients. She sued for intentional infliction of emotional distress and invasion of privacy. After an 8 day New Jersey trial, she was awarded $531,820, which was affirmed on appeal. Del Mastro v. Grimado, New Jersey Ch. Div., March 9, 2010

Update on NuvaRing® Litigation

Fri, 12 Mar 2010 13:09:36 GMT

The NuvaRing® Mass Tort is presided over by Judge Brian R. Martinotti, in the New Jersey Superior Court - Bergen County. Previously, counsel for both plaintiffs and defendants had chosen ten initial bellwether cases for case specific discovery and trial. On, March 3, 2010, Judge Martinotti held a Case Management Conference. During that conference, Judge Martinotti determined that the discovery deadline on the initial bellwether cases would be March 15, 2011, culminating in proposed trial dates some time in May 2011.

As we have discussed in previous posts, studies have shown that the ingredients contained in the birth control product NuvaRing® have been linked to various forms of severe side-effects including: heart attack, stroke, deep vein thrombosis (also known as DVT or blood clots), internal organ damage, myocardial infarction and pulmonary embolism.

At Stark & Stark we pursue claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. Contact Stark & Stark to speak with one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the manufacturers of NuvaRing®.

Florida Gay Adoption Still Banned Despite Headlines

Thu, 11 Mar 2010 19:42:48 GMT

A news article has been circulating the past couple days with the title, "In Florida, Gay Adoption May No Longer Be Forbidden."

But the headline is misleading--gay adoption in Florida is no more legal than it's been since it was banned in 1977. All that's happened is three state courts granting an adoption to gay couples.

In the latest case, Martin Gill and his partner say that the Florida ban is unconstitutional. The U.S. Court of Appeals will soon release a decision on the case, which will almost certainly be appealed again.

Until that whole appeal process is over, Florida gay adoption will still be "forbidden."

Collaborative Law: An Alternative Method to Resolve Divorce, Custody and Support

Thu, 11 Mar 2010 18:20:50 GMT

When I became an attorney, I never imagined that I would actually look for ways to help clients stay out of the courtroom. After all, one of the reasons the legal profession interested me was that I could argue and advocate for clients in court (an '80s child, I admittedly watched too much L.A. Law).

At any rate, since I entered private practice nearly 9 years ago, I have met with hundreds of people about their options for divorcing. It's not uncommon for someone to come in to my office for an initial consultation and tell me that they would like to divorce and resolve related issues like custody, child support and spousal support without going to court. Even with the best legal representation, litigation can be an uncertain and frightening experience. It's simply not the right choice for everyone or every family. I wanted to be able to provide an option to those clients who are weary of litigation and believe they can work out a solution without the need for court intervention. For that reason, I recently became trained to practice the collaborative method, or what's familiarly called "Collaborative Law".

The hallmark of a collaborative case is a Participation Agreement, which is a written agreement where both parties commit to resolve the matter outside of court. Each client has his or her own attorney to help them through the process, providing advice about options and creative solutions for moving forward. If necessary, a financial expert and family specialist (often a psychologist) will help the family work through asset valuation or custody issues. The goal of the collaborative model is to reduce the conflict within a family so that at the conclusion of the divorce, the parties can move on with their lives without some of the emotional and financial harm that can sometimes occur during the traditional litigation model.

To date, Collaborative Law is still a relatively new option for Lancaster County residents to pursue. It is my hope that by educating clients and other professionals including, attorneys, financial experts and family therapists, Collaborative Law will offer an additional option clients can utilize to reach constructive agreements about the dissolution of their marriage.

In the next few weeks I will be posting additional articles covering Collaborative Law in more detail.

Request Your Copy of the MacAurthur Juvenile Court Training Curriculum

Thu, 11 Mar 2010 16:33:17 GMT

The National Juvenile Defender Center (NJDC) has released a second edition of the MacAurthur Juvenile Court Training Curriculum Intended for juvenile court judges, defense attorneys, prosecutors, and probation staff, the curriculum provides in-depth training materials on the most up-to-date adolescent development research and its application to juvenile court practice. As a part of the MacArthur Foundation’s [...] Related posts:

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The Breastfeeding Employee

Thu, 11 Mar 2010 15:20:41 GMT

Do breastfeeding employees have any protection under the laws? That was the question I wanted an answer to after learning from other women that some employers were not supportive of their decision to continue breastfeeding upon return to work. The employers of the women I talked to did not refuse to allow the women to pump at work, but did not make it easy for them either. Many of the women did not have regular breaks or a private and convenient place to express their breast milk.

Unfortunately, as of 2009 approximately 15 states have enacted laws that protect a lactating employee. Iowa is not one of those states. Of the states with laws, none provide a lactating employee any time, other than their normal breaks, in which to pump and only a few require the employer to provide a lactation area. I would argue that such laws do not effectively provide any protection to a lactating employee. Without adequate time and a private area, many women would abandon the idea of continuing to breastfeed their children.

With all the benefits that breastfeeding provides for both mother and child, it would be beneficial for employers to support mothers who wish to continue breastfeeding upon their return to work. I am lucky to work for an employer that has supported my decision to continue breastfeeding upon my return to work. For those of you with employers that may not prohibit you from pumping at work, but do not necessarily encourage you, talk to your employer before the issue arises. Perhaps your employer has never been faced with the issue or the issue has never been discussed. Employers, think about this issue prior to a request from an employer. Think about whether you can create a private place for a lactating worker or provide such employer with additional time in which to pump. Thinking about it now may reduce future problems.

QDRO JERSEY CITY HUDSON COUNTY NEW JERSEY MEDIATION LAWYER

ccaesq@att.net (Charles C. Abut) — Thu, 11 Mar 2010 14:14:30 GMT

Good news : they got divorced in New Jersey in 1995. Bad news : the language of their New Jersey divorce agreement was ambiguous regarding. Worst news : by 2005, they still had no QDRO entered after 7 years, thus requiring the next 5 years of trial/appellate litigation. The antidote to this kind of post-judgment food fight? Get the QDRO approved/entered at the time of the divorce. Cully v. Cully, New Jersey App. Div., March 8, 2010

Stark & Stark Shareholder Presents Seminar on New Jersey's Community Associations, Solar Energy and Legal Issues

Thu, 11 Mar 2010 13:00:18 GMT

David J. Byrne, Shareholder and Co-Chairperson of Stark & Stark's Community Association Group presented materials related to legal issues connected with community associations and solar energy, during a seminar entitled "Community Associations, Solar Energy & Legal Issues".

The presentation was part of Wentworth Property Management's Solar Symposium, held at the Renaissance @ Manchester Association on February 18, 2010. Mr. Byrne focused his presentation on the rights and limitations of boards in relation to solar power. He discussed the fiduciary duties of community associations, the interpretations of restrictive covenants and the enforcement of rules, all in connection with solar power.

You can download the full presentation online here. (13.4 MB)

HAFA - Will Short Sales Be the Trick to Stop the Foreclosure Flood?

Thu, 11 Mar 2010 02:08:10 GMT

Realizing that the "fixes" put in place by the federal Home Affordable Modification Program ("HAMP") have been an abysmal failure, the Obama Administration and the Treasury Department have reached for a new arrow in their quiver. Beginning April 5, 2010 the new Home Affordable Foreclosure Alternative program ("HAFA") will attempt to assist hundreds of thousands of the delinquent homeowners who could not be rescued under the HAMP program by allowing them to shed their homes through the short sale process.

Traditionally, a short sale is when the proceeds from the sale of a home are insufficient to fully pay off all outstanding debts and encumbrances recorded against the property. In these situations, the selling homeowners can either bring funds to the closing to make up the difference, or obtain approval from their mortgage lenders to accept a reduced amount to satisfy their outstanding loans.

Under HAFA, the lender must offer a short sale in writing to the homeowner within 30 days after the homeowner either is found ineligible for mortgage modification under HAMP or has been ruled unable to sustain payments under a trial plan. Under the new plan, a lender will use real estate agents to determine the value of the encumbered home and this figure will be the lender’s minimum to accept for a short sale. This figure will not be shared with the homeowner, but if an offer comes in that is equal to or greater than this amount, the lender must accept it and proceed with the short sale.

Under this new program the primary lender will receive $1000 if the short sale is completed. A lender holding a secondary lien could get up to $3000 of the short sale proceeds, or can attempt a short sale outside the program if it does not agree to share. In addition, the selling homeowner will get $1500 in "relocation assistance".

While HAFA will attempt to make short sales easier and a more likely alternative to foreclosure, short sales require significant time and patience by all parties involved. Luckily, with the seemingly continuous delay of the foreclosure process by the New Jersey courts, one thing that delinquent homeowners seem to have is time.

At the beginning of foreclosure crisis lenders shunned short sales and would regularly refuse to participate in the process. However with the failure of other federal programs to effectively turn the tide of the foreclosure flood, it may now be time for short sales to see their moment in the sun. For condominium and homeowner associations ("Associations"), HAFA may mean fewer empty foreclosed homes waiting to be sold by uninterested and unmotivated lenders. Another direct benefit of the HAFA program for Associations is that the common assessment liens recorded against the homeowners’ units must be paid in full for the short sale to be completed. This will provide Associations significant leverage to ensure that unpaid common assessments are recovered.

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